The plot thickens.
Unbeknownst to the public, First Ward Councilman Mike DeFusco has been ruminating over cutting the mayor's staff since last summer.
Six months ago, he requested a legal interpretation of N.J.S.A. 11A:3.5, and an opinion whether the statute ("Political subdivision unclassified service") limits the staffing of the mayor's office to two specific in the two specific positions identified in the statute: "one secretary and one confidential assistant." This was prior to, and in advance of, crafting legislation to cut staff in the Mayor's office. But last summer, Corporation Counsel was merely providing information and not vetting a piece of legislation.
On July 6, 2018 Assistant Corporation Counsel Scott DeRosa replied to Councilman DeFusco in a 2-page memo.
In short, the answer to his question on whether N.J.S.A. 11A:3.5 limits the organization of the mayor's office to unclassified titles "secretary" and "confidential assistant" is no.
JULY 6 LEGAL OPINION
Did he listen?
Nope, Councilman DeFusco crafted legislation to whittle down the mayors staff from 3 down to 2, and put it on the Council's December 5th Meeting Agenda.
Mind you, Council members can disagree with Corporation Counsel's opinion. But they cannot ignore the City's legal advice; they are obligated to procure an outside counsel's legal opinion-- a party to assume liability if the City gets sued.
Did DeFusco procure another opinion before putting forth legislation ignoring the Citys Legal Department? The Council could vote on retaining outside independent counsel. He did not.
In an effort to warn the Council , Assistant Corporation Counsel DeRosa sent a memo advising the Counsel that they had no legal authority to enact legislation that regulates the staff in the mayor's office; they "may only regulate the election, appointment, setting of salaries and removal of officers and employees of the council subject to any pertinent civil service requirements and any pertinent contractual obligations and within the general limits of the municipal budget."
DECEMBER 4 LEGAL OPINION
The City was ignored. DeFusco's ordinance was not pulled...
It was voted on, and PASSED. Five Council members ignored the City TWICE. Without obtaining 'legal cover' to do so, without protecting the City from litigation. GA suspects our insurance carrier might take a pass on paying for any judgment against them individually and collectively. These five went 'rogue' and voted against the City's legal advice: DeFusco, Cunningham, Giattino, Ramos, and Fisher.
We are in TRUMP Territory. Ignore whatever thwarts your will; it's all fake news.
GA note: To the "I'm smarter than the City's lawyers" and Wikipedia Legal Degree Crowd, you're right.
If they choose to ignore legal counsel, and don't seek legitimate, second legal opinions elsewhere that are paid for, not through the quid-pro-quo that they are comfortable with, then when the City is sued, DeFusco and the other council clowns will be personally liable.
ReplyDeletePart of me is so sick of them that I hope this happens.
I suspect the mayor will veto this and even if overridden, ignore this measure as it is outside their scope of powers and unenforceable.
DeleteAfter reading the opinion and the letter I have to say I can't tell what assist corp counsel is arguing for. Is he saying that
ReplyDelete1) Secretary and Confidential Assistant are just two of the many non-civil service titles available for the Mayor's office to fill and the Mayor can hire additional people to other non-civil service titles? If so there is no mention of a potential limit on the titles that can exist.
or
2) That there are only two titles but a Mayor can hire as many people as they want to those titles. E.g. Having 10 Secretaries and 22 Confidential Assistants
I can't say I buy either argument but I'll say it's likely not the Council's place to make the call. The Mayor or the Council or the unions should contact the State's Department of Personnel/Civil Service to have a determination made.
When I was on the Library Board that's the body I reached out to when I had a question on civil service titles and duties.
https://www.nj.gov/state/archives/catseperson.html
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DeleteI think the only salient point I can take from the opinion is that the city council doesn't have the power to vote on the piece of legislation.
DeleteThe first paragraph of DeRosa's letter makes it very clear, and ignoring his advice exposes those council clowns to personal liability.
DeleteWe can expect more hateful, hysterical histrionics from them in the coming months as election day gets closer. I'm glad this is their common campaign strategy. It's as though Beth Mason never went away. Maybe she's pulling DeFuckup's puppet strings as her usually dark little shop of horrors has been staffed as of late.
As it’s clear to you can you explain it to me?
DeleteLast line of the first paragraph - the word you care about is "no"
Deletelater on in the memo it basically states that the CC has no authority to regulate the organization of the mayor's office, etc....
Why do you keep beating this dead horse? What does it matter? The CC has no authority to go down this path and at best will be completely ignored by the mayor. This measure is as legal binding on the mayor as one demanding God make sure it never rains again in Hoboken.
While the council may have no right to regulate this no reasoning is offered why the State’s limit of two positions is not controlling.
DeleteSimple - the state has NEVER limited the mayor to 2 hires. If you read the memo a little more slowly, you would get that. If state law is "controlling", it is in setting a lower limit for the number of hires, not an upper limit.
DeleteYou're saying that despite NJSA 11a:3-5 explicitly saying that mayors get two non-civil service hires, officially titled a secretary and a confidential assistant that this is meaningless.
DeleteAre you claiming that a Hoboken Mayor could hire an infinite number of non-civil service people to work in the Mayor's office?
May I interject? FAP, if the mayor hired an infinite number of staff, he would have to make his office infinitely large. Now, that is possible in cyberspace, but not on Washington Street.
DeleteMaybe he could fit 50 or 60 aides in that big office, but would the City Council pay all those salaries?
GA I appreciate the answer; given the thinness of the legal opinion I wouldn't want to discuss it either.
DeleteI'm hoping the Mayor gets a ruling on this from the State so it can be put to bed once and for all.
I'll keep you posted. Now, are you suggesting the mayor wants to be put to bed with his aides? Maybe that's why he wants more than two. Maybe the mayor wants an infinite aide harem to conduct infinite orgies at City Hall. Of course! He can't possibly want 3 aides to help run Hoboken.
DeleteGA Mayor Bhalla can hire as many people to help run Hoboken as he can get the council to fund, the law seems to indicate that all but two of those hires must have gone through the civil service hiring process.
DeleteI'd want Mayor Mike DeFusco to follow the law just as I want Mayor Bhalla to adhere to it.
I'm hoping Mayor Bhalla is even now getting Corp Counsel's opinion vetted by the State agency that oversees civil service. Shouldn't take too long to get an answer.
FAP, I expect City Hall to follow the law in every way, and expect that they are. Is it possible that your interpretation of the law is incorrect? That the City of Hoboken Law Department knows municipal law a little better than you ? You know, I liked Santiago a lot. Was he there 9 months? 10 months? As you would put it, he may have been the "third hire." You had no questions about the lawfulness of Mayor's office organization until Vijay arrives. Maybe that's the issue? No questions about the Mayor's staff when it was John, Jason and Santi. Further, you don't appear to have a problem with an unlawful 'ultra vires' ordinace (Council has no authority to regulate the organization of the mayor's office). Listen, you have made yourself very clear over here. This blog is the wrong place to communicate with the mayor's office. You can do it, I know you can. Keep us posted!
DeleteI'm unpacking this damn letter now because it's getting to me:
ReplyDeleteFIRST LETTER--
In his first letter he says the mayor's office is not limited to the two specific positions identified in the statute under 11A:3-5. After a very careful reading, I believe he is saying (in this letter) that the mayor is limited to those 2 specific unclassified employees, but can have all the civil service employees ever because there's no hard limit to those in the statutes.
My explanation: He has a paragraph that describes the differences between the civil service & unclassified employees by statute. Then, the paragraph that starts: In pertinent part. . .he ends it with: "I find that a plain reading of the above statute simply demonstrates that civil service has authorized one unclassified secretary and one unclassified confidential aide as potential appointments to all mayors." -- So the civil service statute allows the mayor to have two unclassified employees in his office, and those are the titles.
Next, however, DeRosa says that those chapters don't really apply, chapter 51 applies which says the personnel in the mayor's office shall include a secretary, clerk-stenographer and confidential aide. "Therefore the titles of secretary and confidential aide are unclassified".
In effect, all he's said there is - chapter 51 gives the mayor 3 employees, 1 is civil service and two aren't. He goes on to say that this statute doesn't really regulate the organization of the mayor's office either, it just provides for the potential appointment of two unclassified titles. It does not limit the civil service employees.
And that's it - so in short, his first letter says: No, the mayor isn't limited to 2 employees set forth in 11A:3-5, but those two are the only unclassified (non-civil service employees).
SECOND LETTER:
He begins by reiterating that 11A:3-5 doesn't regulate the organization of the Mayor's office. In this letter he states that the plain reading does not limit the unclassified positions in the Office of the Mayor to those two titles, but those are simply two unclassified titles that are available to each mayor.
He goes on to say there's no state statute that regulates personnel, but that the mayor has to be within the budgetary limits established by the council. He also states (later) that these titles are a minimum number of appointments, there is no limit (beyond budgetary limits).
He says the CC doesn't have authority to enact legislation that regulates the personnel of the Mayor's Office.
He has more to say, but his last paragraph indicates that the office of constituent services is actually under the Dep't of Administration & not the mayor's office, so this has nothing to do with 11A:3-5 anyway.
---
If I were a gambler, I'd wager the CC votes to de-fund something so that there's no money to pay the 3rd hire. That's what they do in D.C.
Because I think the two letters contradict each other to a degree, I still think they're clear as mud.
DeleteThe mayor can move the defunded position into another office and all of a sudden the position is funded again. That is easy enough to get around.
DeleteLOL yep. . .they take care of the budget, but they can be worked around. Or just make new civil service positions. I don't know how that works.
DeleteDa Ojo Rojo other than directors can other departments hire outside of civil service? If not then while funding would be available the person would have to go through the civil service hiring process.
DeleteNow you are being obtuse. Nobody is being hired. What pot they are being paid out is changing. This is an entirely common practice in government. And they don't even need to do that b/c they can just shift costs if they have to. Money is fungible and there are multiple work arounds potentially available.
Delete" Nobody is being hired."
DeleteWasn't there a hire of a non-civil service employee to the Mayor's off literally 7 days ago? Which totals the number of non-civil service employees in the the Mayor's office to three which is one more than NJSA 11a:3-5 allows for a city which has fewer than 80K residents.
The issue is very simple, it's how many non-civil service employees can a city that has adopted civil service and has with fewer than 80K employee in the Mayor's office.
The argument that NJSA 40L69A-60.1 allows cities with more than 80K residents to have more than 2 non-civil service employees in the Mayors office effectively negates NJSA 11a:3-5 for cities under 80K residents appears, to be kind, far fetched.
A simple email from the Mayor or Council to Joe Greer at civil serivce(Joseph.Greer@csc.nj.gov) should yield a final answer on this. Heck with all this fuss I'm tempted to send him what GA has published and ask for an opinion.
This has nothing to do with mayoral staff members or budgets, and everything to do with distracting, deflecting, douchebaggery.
ReplyDeleteDeFusco will spend the next year DeObfuscating, so no one will focus on him, and his ethically and morally challenged colleagues.
In 10 months, 26 days, 4 hours and 35 minutes, their political careers will be over